Donald E. Weaver, Jr. v. Corizon Health, Inc. ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 5, 2022 *
Decided January 6, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-1641
DONALD E. WEAVER, JR., Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:19-cv-00799-TWP-DLP
CORIZON HEALTH, INC., et al.,
Defendants-Appellees. Tanya Walton Pratt,
Chief Judge.
ORDER
Donald Weaver, an Indiana inmate, asserts that two prison doctors and the
Indiana Department of Correction’s healthcare contractors violated his Eighth
Amendment rights by failing for four years to provide him with adequate testing and
treatment for throat problems that ultimately required surgery. See 42 U.S.C. § 1983.
*
We have agreed to decide the case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 21-1641 Page 2
Because Weaver’s claims against the doctors are untimely, and there is no basis for the
contractors’ liability, we affirm the entry of summary judgment for all defendants.
Corizon Health, Inc., was the healthcare contractor for the Department of
Correction until April 2017, when Wexford of Indiana, LLC, took over. We recount the
facts about Weaver’s treatment in the light most favorable to him. See Thomas v. Martija,
991 F.3d 763, 767 (7th Cir. 2021).
In November 2013, while incarcerated at the Wabash Valley Correctional Facility,
Weaver began experiencing dizziness, difficulty breathing, fainting, swelling in his
throat, chest pains, stones in his mouth (allegedly), and coating and lumps on his
tongue. Weaver went to the infirmary multiple times and reported these symptoms to
doctors Frances Dwyer and Naveen Rajoli. He made many written and oral requests for
treatment and asked repeatedly to see a specialist. Although both doctors prescribed
medications and performed various tests, neither sent Weaver to a specialist or
accurately diagnosed his conditions. Dr. Dwyer last examined Weaver in April 2014,
and Dr. Rajoli in April 2016.
Weaver was transferred to Pendleton Correctional Facility in March 2017. His
symptoms persisted, and he saw an ear, nose, and throat specialist, who diagnosed
ptotic epiglottis, chronic tonsilitis, and dysphasia. Based on the specialist’s
recommendation, Weaver had throat surgery in 2018.
In February 2019, Weaver sued prison officials, doctors, and healthcare
contractors at both the Wabash Valley and Pendleton facilities for constitutional and
statutory violations related to his medical treatment. The district court severed the suit
and limited this case to the events that occurred at Wabash Valley. It then screened the
complaint and allowed Weaver to proceed on deliberate-indifference claims against
doctors Dwyer and Rajoli; Monell claims against Corizon and Wexford; and, on a third-
party-beneficiary theory, claims against Corizon and Wexford for breach of contract. (A
claim against a third doctor, who was never served with process, is not at issue here.)
At the start of discovery, Weaver twice moved for the recruitment of counsel; he
explained that he lacked knowledge of the subject matter at issue and that his facility
was frequently on lockdown. The court denied the first motion because Weaver had not
submitted the form containing the information it needed. In denying the subsequent
motion, the court explained that the issues were straightforward and that Weaver had
demonstrated competence to litigate at that stage.
No. 21-1641 Page 3
The parties eventually filed cross-motions for summary judgment, and the court
granted the defendants’ motions. First, the court determined that Weaver’s claims
against Dr. Dwyer and Dr. Rajoli were untimely. With respect to Corizon, Weaver did
not support his contention that it had a policy of failing to properly train its doctors.
Further, he was not a third-party beneficiary to Corizon’s contract with the Department
of Correction, and therefore he could not sue for an alleged breach. Finally, the court
concluded that Wexford could not be liable because it did not become the healthcare
contractor for Indiana prisoners until after the events giving rise to this suit.
On appeal, Weaver challenges the entry of summary judgment, which we review
de novo. Walker v. Ingersoll Cutting Tool Co., 915 F.3d 1154, 1157 (7th Cir. 2019). He does
not mention the Monell claim against Wexford or the breach-of-contract claims, so we
do not address them. See id.First, Weaver challenges the ruling on his claims that the two doctors at Wabash
Valley, with deliberate indifference to his serious health concerns, failed to accurately
diagnose and treat his condition. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
He does not squarely address the timeliness of these claims, but he refers to having a
“continuing injury,” which we construe as a challenge to the district court’s
determination of when his claims accrued.
Accepting that Weaver is still experiencing harm from the doctors’ actions before
February 2017, as he asserts, his claims are still untimely. The limitations period for
Weaver’s claims is two years. See IND. CODE § 34-11-2-4; Wilson v. Garcia, 471 U.S. 261,
280 (1985) (suits under § 1983 borrow state statute of limitations for personal-injury
claims). A claim generally begins to accrue when the plaintiff knows of his physical
injury and its cause. See Devbrow v. Kalu, 705 F.3d 765, 768 (7th Cir. 2013). But where
there is a continuing violation, as here, the accrual of a claim is delayed. See id at 770. In
that case, the clock begins to run “when the course of illegal conduct is complete,” even
if the harm persists. See United States v. Spectrum Brands, Inc., 924 F.3d 337, 350 (7th Cir.
2019). Once the doctors were no longer responsible for Weaver’s treatment, the
limitations period began to run. See Devbrow, 705 F.3d at 770. Dr. Dwyer and Dr. Rajoli
last attended to Weaver in April 2014 and 2016, respectively, but Weaver did not file his
complaint until February 2019—well beyond the statute of limitations.
Weaver also contends that a reasonable jury could find that Corizon had a policy
or practice of not properly training its doctors. There is no respondeat superior liability
under § 1983—which answers Weaver’s suggestion that Corizon should be liable for
harms its employee-doctors caused—but Weaver could proceed if he had evidence that
Corizon itself caused a constitutional violation. See Monell v. Dep’t of Soc. Servs, 436 U.S.
No. 21-1641 Page 4
658 (1978). Assuming failure to train is a valid theory under § 1983, Weaver would have
to show that Corizon knew its doctors to be providing insufficient treatment and, by
failing to train them, demonstrated deliberate indifference to that known risk. Flores v.
City of S. Bend, 997 F.3d 725, 731 (7th Cir. 2021) (citing City of Canton v. Harris, 489 U.S.
378, 388 (1989)). But—to the extent this claim is timely—the record contains no evidence
of Corizon’s knowledge of how the two Wabash Valley doctors were treating (or
mistreating) Weaver. Therefore, summary judgment for Corizon was appropriate.
Finally, Weaver argues that the district court abused its discretion by refusing to
recruit a pro bono attorney for him. When asked to take this step, the district court must
assess whether the indigent plaintiff reasonably attempted to obtain counsel, and, if so,
whether he appears competent to litigate the case on his own, considering its difficulty.
Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). And to demonstrate a
reversible error on appeal, the movant must also show prejudice. See id. at 659.
Here, the district court determined that Weaver demonstrated reasonable
attempts to obtain his own counsel but that he was competent to litigate the case on his
own because "[t]he overall factual allegations and legal claims regarding the defendants
are straightforward" and Weaver "has a GED and has no medical or mental health
issues that affect his ability to litigate these claims." Thus, the district court applied the
correct legal standard and used the facts in the record to make a reasonable decision. Id.
at 658; see also Perry v. Sims, 990 F.3d 505, 513 (7th Cir. 2021). And Weaver does not
attempt to explain how having a lawyer could have affected the result, which is largely
attributable to the timing of his claims.
AFFIRMED